COMMONWEALTH v. SCOTT

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Indictments found
and returned in the Superior Court Department, two on September
30, 1998, and five on February 8, 1999, respectively.

A pretrial motion to
suppress evidence was heard by Charles T. Spurlock, J.

An application for leave
to prosecute an interlocutory appeal was allowed by John M.
Greaney, J., in the Supreme Judicial Court for the county of
Suffolk and the appeal was reported by him to the Appeals Court.

Marian T. Ryan,
Assistant District Attorney, for the Commonwealth.

Randall K. Power
for the defendant.

LENK, J.

The grand jury returned
indictments against the defendant, Perdite Scott, in connection
with separate incidents involving two different victims. The
first incident took place on the evening of June 2, 1998; the
defendant was charged with assault with intent to rape, rape,
assault and battery, and indecent assault and battery, all upon
Lucy Smith,[2]a woman over the age of
fourteen.[3] The second
incident occurred on the evening of July 21, 1998, and the
defendant was charged with assault and battery, and assault with
the intent to rape Anne Donovan.

The defendant, asserting
that the police did not have reasonable suspicion to justify an
investigatory stop or probable cause to arrest, brought a motion
to suppress all observations, evidence, and statements, including
identifications made via photographic arrays, that were derived
from the defendant’s arrest on the evening of September 8, 1998.
After an evidentiary hearing at which only one witness — the
arresting officer — testified, the motion judge allowed the
motion to suppress. The case was reported to us by a single
justice of the Supreme Judicial Court, who allowed the
Commonwealth’s application for leave to appeal from the allowance
of the suppression motion.

On appeal, the
Commonwealth contends that the motion judge erred in allowing the
motion. The judge determined that the initial encounter between
the arresting officer and the defendant was an illegal
warrantless seizure and that subsequent contacts between them
were similarly improper. The Commonwealth asserts that certain of
the motion judge’s findings were clearly erroneous because they
were either at variance with or failed to incorporate what the
Commonwealth maintains was uncontroverted testimony, and that the
erroneous findings, coupled with certain errors of law, require
reversal.

The judge’s findings.
On September 8, 1998, at approximately 8:30 P.M.,
Sergeant David Benoit of the State police was driving in a marked
cruiser on Greenborough Boulevard[4]n Cambridge,
toward Watertown, when he saw a black male walking in the
opposite direction about 100 feet away. Benoit, believing that
the defendant fit the general description (black male over six
feet tall) of an assailant in two sexual assaults which took
place in that general area at approximately the same time of
night on June 2 and July 21, 1998, turned his cruiser around to
follow the defendant. As he reversed direction, Benoit saw the
defendant leave the sidewalk and go down a dirt path toward an
area known to him as a place where homosexual men gather. Benoit
drove onto the shoulder of the road and stopped about 40-50 feet
away from the defendant. Wearing his State police jacket, Benoit
stepped from his cruiser, turned the cruiser’s spotlight on the
defendant, and told the defendant to come back to him because he
wanted to talk to him. After the defendant obeyed and began
walking toward Benoit, and as he was approximately 20 feet away
from the cruiser, Benoit ordered the defendant to stop and to
remain there. Benoit ordered the defendant to place on the ground
a black bag he was carrying. At all times, the cruiser spotlight
was on the defendant.

Benoit then radioed for
assistance and, upon the other nearby trooper’s arrival, the two
officers approached the defendant. As Benoit questioned the
defendant, the other trooper searched the defendant’s bag; he
found a number of condoms. The defendant gave his name when
asked. When asked his middle name, he told Benoit it was
"Lee," a name matching the middle name given by the
assailant to one of the victims in the sexual assault cases that
Benoit then had under investigation. Benoit then had the
defendant sit in the rear of the other trooper’s cruiser, and,
once seated there, the defendant was advised of his Miranda
rights and signed a Miranda form. The defendant then answered
Benoit’s questions, telling him (1) that he lived in Cambridge
with his sister; (2) that he had taken the bus from Central
Square; and (3) that he had a criminal record including a
conviction for rape. The defendant denied that his mother was
Indian or that he had ever used the name Barnes.[5]Benoit then asked
the defendant whether he would be willing to be viewed by a
couple of women for identification purposes, and the defendant
replied that Benoit was trying to "jam him up." When
asked if he wanted a lawyer, the defendant said that he was not
sure. Benoit then told the defendant he was under arrest for rape
and the defendant was thereafter transported to police barracks
where he was photographed. The photo taken, as part of an array,
was shown to the July victim and she identified the defendant as
her assailant.

On the basis of these
findings, the judge concluded that the defendant was seized the
moment that Benoit "stopped him from 40-50 feet away and
told the defendant to come back and talk to him. This was not a
situation where a police officer approached a defendant and
ask[ed] him if he would be willing to answer a few questions. A
uniformed sergeant turned his cruiser spotlight on the defendant
and told him to walk back forty to fifty feet to speak with him.
At all times, Sergeant Benoit directed the defendant’s movement,
leaving the defendant no choice but to submit to his clear show
of authority." The judge characterized what the sergeant had
said to the defendant as a "command" that the defendant
"obeyed." At the time of this seizure, the judge found,
the basis of Benoit’s suspicion was his belief that the defendant
fit the general description of a black man over six feet tall who
was walking in the same vicinity where the two prior sexual
assaults had occurred. The judge determined that, prior to the
stop, Benoit had neither ascertained any additional physical
characteristics of the defendant along the lines that had been
described by the victims that would serve to distinguish him from
any other black man in the area, nor observed the defendant
engaging in any suspicious or criminal activity. Accordingly, the
judge ruled, the Commonwealth failed to show that Benoit had
sufficient articulable facts on which he could have based a
reasonable suspicion that the defendant had committed a crime.
Absent a showing of reasonable suspicion to justify the stop, the
judge concluded that all evidence obtained as a result of the
illegal seizure must be excluded.[6]

Benoit’s testimony.
The judge’s findings do not track Benoit’s testimony in at least
the following respects, as to which the Commonwealth asserts
critical errors in such findings. First, Benoit testified that,
when he first saw the defendant from about 100 feet away, Benoit
could see that, consistent with descriptions provided by the
victims of their assailant, the defendant was very muscular, as
well as at least six feet tall, over 200 pounds, black, male,
with short hair, and wearing a tee shirt and shorts.[7] The judge found that, at
that point, Benoit saw only that the defendant was a black male
over six feet tall. Second, Benoit testified that when he saw the
defendant from about 20 feet away, he also observed that the
defendant had thick lips and facial markings similar to pock
marks or freckles as described by one of the victims. In
contrast, the judge made no findings as to what, if anything,
Benoit observed about the defendant’s physical characteristics
from 20 feet away. Third, Benoit testified, contrary to the
judge’s finding, that he did not ask the defendant to put his bag
on the ground when he stopped about 20 feet from the cruiser.
Fourth, Benoit testified that when the defendant was seated in
the cruiser he stated that he had taken the Central Square to
Watertown Mall bus, consistent with the statement made to the
first victim by her assailant, who mentioned taking the Watertown
Mall bus. In contrast, the judge found only that the defendant
told the police he had taken a bus from Central Square.

The divergence of the
judge’s findings from Benoit’s testimony in these particulars is
of importance, contends the Commonwealth, since the latter would
establish, first, that the initial interaction (from 40-50 feet
away) was an encounter only and, in any event, that Benoit had
reasonable suspicion to justify a threshold inquiry; second, that
the stop (from 20 feet away) was a threshold inquiry based on
specific, articulable facts and reasonable inferences drawn
therefrom that the defendant had committed a crime; third, that
asking the defendant to sit in the cruiser was not an arrest and
that, after sitting there and receiving his Miranda warnings, the
defendant’s disclosures provided sufficient additional
information to form the requisite probable cause to arrest the
defendant.

Discussion. It is
well established that, when reviewing action on a motion to
suppress, "we accept the motion judge’s subsidiary findings
of fact absent clear error." Commonwealth v. Sinforoso,
434 Mass. 320, 321 (2001), quoting from Commonwealth v. Sanna,
424 Mass. 92, 97 (1997). Also, "[t]he determination of the
weight and credibility of the testimony is the function and
responsibility of the judge who saw the witnesses . . . ." Commonwealth
v. Sinforoso, supra, quoting from Commonwealth
v. Yesilciman, 406 Mass. 736, 743 (1990). In other words,
we will ordinarily not disturb the findings of a judge who saw
and heard the witnesses, who was free to make credibility
determinations and to accept all, some, or none of their
testimony, unless there is a showing of clear error in those
findings.

The Commonwealth would
have us view as clear error both the findings made that are
contrary to Benoit’s testimony and those that fail to incorporate
aspects of the testimony not expressly controverted by other
evidence. We have no difficulty with the former, but think that
the asserted errors that the judge made in this regard — that
Benoit ordered the defendant to put down his bag upon being
stopped 20 feet from the cruiser, when no evidence exists to
support this finding, and the mischaracterization of the bus
route — may ultimately not be of consequence and, in any event,
do not suffice to cast fatal doubt on the judge’s other findings
which, on the whole, have evidentiary support. As to the latter,
the judge’s failure to incorporate purportedly uncontroverted
testimony, we are not persuaded that the proper course is simply
to supplement the judge’s findings with Benoit’s testimony and
jettison whatever in the findings may be at variance with it.

We cannot be sanguine
here, however, that the judge in fact credited all of Benoit’s
testimony. We note, for example, that the judge expressly
rejected Benoit’s explanation as to why he seated the defendant
in the cruiser, Benoit having said it was fear for his safety,
the judge concluding this was not so. Given this, we are
concerned that some of the seemingly uncontroverted additional
testimony upon which the Commonwealth relies may have gone
unmentioned simply because the judge did not credit it.[8]Contrast Commonwealth
v. Kitchings, 40 Mass. App. Ct. 591, 593 n.4 (1996).

The point is perhaps of
less importance with respect to the judge’s findings and rulings
as to the observations Benoit made from 100 feet and from 40-50
feet away than it is to the judge’s findings and rulings as to
the officer’s observations made from 20 feet away and the
sequence of events thereafter.

Even if we were to defer
entirely to the judge’s findings as to what Benoit knew and saw
from 40-50 feet away, we think problematic the legal significance
that the judge accorded to aspects of the initial encounter.
"[N]ot every encounter between a law enforcement official
and a member of the public constitutes an intrusion of
constitutional dimensions requiring justification." Commonwealth
v. Rock, 429 Mass. 609, 611 (1999), quoting from Commonwealth
v. Stoute, 422 Mass. 782, 789 (1996). A person is seized
only "if, in view of all of the circumstances surrounding
the incident, a reasonable person would have believed that he was
not free to leave." Commonwealth v. Rock, supra
at 611 (citations omitted). The judge found that the uniformed
sergeant "told [the defendant] to walk back forty to fifty
feet to speak with him" while shining his cruiser spotlight
on him and that "[t]he defendant obeyed the sergeant’s
command."

The defendant, a tall
black man fitting the general description of an assailant in two
prior sexual assaults, who was walking in the same general area
and at about the same time as had been the case in each of those
prior assaults, had left the sidewalk and was going down a dirt
path heading away from Benoit. This was at 8:30 P.M.,
when visibility was doubtless diminishing. Use of the spotlight
to enhance visibility was reasonable in the circumstances and
qualitatively quite unlike the use of a siren, flashers or blue
lights. See Commonwealth v. Watson, 430 Mass. at
731; Commonwealth v. Grandison, 433 Mass. 135,
138-139 (2001). Compare Commonwealth v. Smigliano,
427 Mass. 490, 491-492 (1998) (activation of cruiser’s blue
lights in the circumstances a seizure); Commonwealth v. Evans,
50 Mass. App. Ct. 846, 849 (2001) (activation of cruiser’s blue
lights did not change nature of encounter). The encounter was in
an unconfined public space and there was no evidence that Benoit
ordered the defendant to answer his questions, nor that the
defendant indicated a wish to leave. See Commonwealth v. Cao,
419 Mass. 383, 387-388 (1995); Commonwealth v. Rock,supra at 612; Commonwealth v. Wallace, 45
Mass. App. Ct. 930, 931 (1998). Although in his legal analysis,
the judge characterized the sergeant’s communication to the
defendant as a "command," he had expressly found only
that Benoit had "told the defendant to come back and talk to
him," a finding consistent with Benoit’s testimony that he
had yelled out, "Excuse me, can you come back. I would like
to talk to you for a minute."[9] We think that,
notwithstanding Benoit’s police jacket and the use of his cruiser
spotlight, the cases suggest that a reasonable person in the
defendant’s circumstances could well have believed he was free to
leave at the time. "[T]he record here does not support that
the police blocked the defendant’s course or otherwise controlled
the direction or speed of his movement." Commonwealth
v. Grandison, 433 Mass. at 138.

The matter is yet more
troubling with respect to what happened when the defendant was 20
feet away from the cruiser. There is no dispute about the fact
that, at this point, Benoit ordered the defendant to stop and to
remain there; the defendant was not free to leave. It is at this
point plain that the sergeant’s "interaction with the
defendant intruded on the defendant’s right to personal security
under the Fourth Amendment to the United States Constitution and
art. 14 of the Massachusetts Declaration of Rights, thus
necessitating a justification in the form of either probable
cause or reasonable suspicion." Commonwealth v. Eckert,
431 Mass. 591, 593 (2000). "[A] police officer may stop an
individual and conduct a threshold inquiry if the officer
reasonably suspects that such individual has committed, is
committing, or is about to commit a crime. To qualify as
‘reasonable,’ the officer’s suspicion ‘must be based on specific,
articulable facts and reasonable inferences drawn therefrom.’ The
standard is objective: ‘would the facts available to the officer
at the moment of the seizure or the search "warrant a
[person] of reasonable caution in the belief" that the
action taken was appropriateSect.’" Commonwealth v. Hill,
49 Mass. App. Ct. 58, 62-63 (2000), quoting from Commonwealth
v. Mercado, 422 Mass. 367, 369 (1996).
"Unparticularized racial descriptions, devoid of distinctive
or individualized physical details . . . cannot by themselves
provide police with adequate justification for stopping an
individual member of the identified race who happens to be in the
general area described . . . ." Commonwealth v. Grinkley,
44 Mass. App. Ct. 62, 67 (1997). See Commonwealth v. Cheek,
413 Mass. 492, 495-496 (1992).

It is at this juncture
that the inadequacies in the judge’s findings become especially
significant. He made scant reference in his findings to the stop
at 20 feet, having focused his attention upon the earlier
encounter. As a result, we do not know what it is that the judge
believed Benoit had and had not observed or known about the
defendant before ordering him to stop and remain where he was.
Benoit testified in this regard that, in addition to having seen
that the defendant was a black male at least six feet tall, over
200 pounds, muscular, wearing a tee shirt and shorts, and having
short hair, he had observed by this point that the defendant had
thick lips and certain facial marks, such as freckles or
pockmarks, the foregoing being consistent in whole or in part
with descriptions given by the victims of their assailant.
Because the judge’s findings are silent or otherwise insufficient
on such key aspects of Benoit’s testimony, we are not in a
position to determine whether Benoit had reasonable suspicion to
justify his order that the defendant stop and remain 20 feet
away.

We cannot discern from the
judge’s findings the reason(s) for his departure from Benoit’s
testimony in this respect and cannot tell whether the divergence
is due to credibility determinations he may have made or to other
causes such as simple human error. What is plain to us, however,
is that the deficiencies in the judge’s findings as to the
sequence of events and as to what Benoit observed or otherwise
knew at each step along the way put us in no better position to
review the judge’s rulings as to events subsequent to the stop at
20 feet than as to that stop itself. That is to say, were the
judge to find facts constituting reasonable suspicion to justify
the 20 foot stop, those same facts would presumably affect the
analysis as to whether there was justification for the successive
actions taken and inquiries made. See note 6, supra; Commonwealth
v. Williams, 422 Mass. 111, 118-119 (1996) (fact-specific
inquiry necessary to determine whether seizure is investigatory
stop or an arrest). In such circumstances, we think a remand to
the motion judge is warranted so that he may clarify, supplement
in detail, and, where appropriate, correct his findings of fact,
conduct a further hearing if necessary, and rule on the motion to
suppress under the correct legal standard. See Commonwealth
v. Eckert, 431 Mass. at 593; Commonwealth v. Comolli,
14 Mass. App. Ct. 607, 613-614 (1982); Commonwealth v. Spagnolo,
17 Mass. App. Ct. 516, 524 (1984), S.C., 20 Mass.
App. Ct. 936 (1985). Compare Commonwealth v. Andrade,
389 Mass. 874, 882 (1983). Contrast Commonwealth v. Barnes,
20 Mass. App. Ct. 748, 755 (1985); Commonwealth v. Silva,
21 Mass. App. Ct. 536, 545-546 (1986); Commonwealth v. Medeiros,
45 Mass. App. Ct. 240, 241 (1998).

Accordingly, the order
allowing the defendant’s motion to suppress is vacated, and the
matter is remanded to the Superior Court for further proceedings
consistent with this opinion.

So ordered.

FOOTNOTES:

[1]In two of the seven
indictments, the defendant’s first name appears as Pendite.

[3]The defendant was also
charged with rape as a second or subsequent offense. G. L. c.
265, Sect. 22(b).

[4]The street is designated
Greenough Boulevard in the hearing transcript.

[5]According to Benoit’s
testimony, which we discuss at length below, one of the victims
reported that her assailant had told her his name was Michael Lee
Barnes and that his mother was of American Indian heritage. He
also told her that he lived in Cambridge with his sister and that
he had taken the Watertown Mall bus.

[6]The judge also ruled that
the defendant was placed under arrest when Benoit told him to sit
in the cruiser. He concluded that there was no justification for
the use of this additional restraint as part of an investigatory
stop, since, contrary to Benoit’s testimony, there was no
reasonable concern about the safety of the police officers or the
public: backup had arrived, and a search of the defendant’s
person and bag had already revealed that the defendant was
unarmed. Further, the defendant had been compliant with Benoit’s
orders and had not made any movements suggesting he was a flight
risk. Moreover, Benoit had no information prior to this arrest
that would constitute probable cause to arrest; the only
additional information he had obtained was the defendant’s
generic middle name.

[7]Benoit testified that the
June victim had described her assailant as a black male, about
thirty years old, athletic build, very muscular, over six feet
tall, clean-shaven, dark skin, very short hair, thick eyebrows,
round eyes, thick lips, very large hands with long fingers, a
smoker, and that he had said his name was Michael Lee Barnes. On
cross-examination, Benoit agreed that she had further described
the assailant as having a long face, a thick voice, and that he
was "very presentable, not a strong African-American
persuasion." Benoit testified that the July victim described
her attacker as a black male, over six feet tall, very muscular,
with very short hair, and with marks or freckles on his face. She
also provided these additional details: the assailant was 25-30
years old, thin, about six feet, two inches tall, 175-200 pounds,
had no facial hair, and was wearing a black tee shirt and black
shorts.

[8]It is conceivable, for
example, that the judge may not have believed that Benoit, with
the aid of a cruiser spotlight, in fact saw everything that he
testified he could and did see from distances of 40-50 feet and
20 feet.

[9]The judge’s findings as to
the tenor and content of Benoit’s initial communication to the
defendant are to this extent somewhat ambiguous. Given our view
that, for other reasons, it is necessary to remand for
supplementation and clarification, the ambiguity can be clarified
on remand. The judge should expressly find what was said and what
if any inferences he draws therefrom, and he may, if necessary,
revisit the question whether such communication, in the
circumstances, would have caused a reasonable person to believe
he was not free to leave.

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